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State v. Borrego

May 27, 2003

STATE OF MINNESOTA, RESPONDENT,
v.
CASEY BORREGO, APPELLANT.



Kandiyohi County District Court File No. K302791

Considered and decided by Willis, Presiding Judge, Schumacher, Judge, and Anderson, Judge.

SYLLABUS BY THE COURT

A mistaken, but nonetheless authorized and legally permissible sentence, does not qualify as an unauthorized sentence under Minn. R. Crim. P. 27.03 subd. 9 and therefore may not be corrected after imposition of the original sentence.

The opinion of the court was delivered by: G. Barry Anderson, Judge

Reversed and remanded

OPINION

Appellant pleaded guilty to one count of fourth-degree possession of a controlled substance. The district court imposed what it believed to be a 30-month presumptive sentence but did not address whether the sentence would be served consecutively or concurrently with appellant's probationary sentence resulting from his supervised release. After learning from a corrections officer that the sentencing guidelines presumed consecutive sentencing under these circumstances, the district court vacated the original sentence as a downward-durational departure not supported by mitigating factors and therefore an unauthorized sentence pursuant to Minn. R. Crim. P. 27.03. The district court re-sentenced appellant to a 30-month consecutive sentence. Because the original sentence was not unauthorized, we reverse and remand.

FACTS

On May 24, 2002 appellant Casey Borrego was charged with two counts of a controlled-substance crime in the first degree, in violation of Minn. Stat. § 152.021 (2000); driving after revocation in violation of Minn. Stat. § 171.24 (2000); and possession of drug paraphernalia in violation of Minn. Stat. § 152.092 (2000).

Pursuant to a plea agreement, appellant pleaded guilty to fourth-degree possession of a controlled substance with intent to sell, in violation of Minn. Stat. § 152.024, subd. 2(2) (2000). The state agreed to dismiss all other charges and agreed "not [to] seek an upward departure." The parties also agreed that because of appellant's criminal history, the presumptive sentence in this matter was a 30-month prison term. During sentencing, the district court questioned appellant about his understanding of the plea agreement:

Court: Do you understand that you will be going to prison for thirty months for this offense?

Appellant: Yes, sir.

Court: Are you prepared to ...


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